Taylor v. RaceTrac Petroleum, Inc.

Johnson, Chief Judge.

Ronald Steed was killed and David Telenko was injured when the car they were in crashed into a utility pole. Robin Taylor, Steed’s sister and the administratrix of his estate, along with his parents, Mack and Bobbie Steed, sued RaceTrac Petroleum, Inc., claiming it is liable for Steed’s death because Telenko, who was under the lawful drinking age of 21, was driving the car while under the influence of beer that he had bought at a RaceTrac store. RaceTrac denied liability, contending, among other things, that Steed, not Telenko, was driving at the time of the accident, and that even if Telenko was driving, Steed assumed the risk of injury by riding with him. The case was tried before a jury, which returned a verdict in favor of RaceTrac.

Taylor and the Steeds appeal from the judgment entered on the verdict. They challenge the admission of evidence regarding Steed’s prior drug and alcohol use and his conduct on prior occasions, the exclusion of an emergency room statement made by Telenko and the jury charge on assumption of risk.

The challenge to the evidence of Steed’s prior drug and alcohol use and his prior conduct is correct, and we reverse the judgment on that ground. Although the challenges to the exclusion of Telenko’s statement and the assumption of risk jury charge are without merit, we address those issues because they are likely to arise again on the retrial of the case.

1. Taylor and the Steeds assert the trial court erroneously admitted evidence of Steed’s prior drug and alcohol use, his reckless driving on other occasions and his conduct on prior occasions. We agree with the assertion.

The trial court allowed RaceTrac to introduce testimony from Telenko that Steed had previously taken LSD and smoked marijuana, that Steed had drunk alcohol with his parents on prior occasions, that Steed liked to engage in risky behavior and that on prior occasions. Steed had driven fast and not obeyed traffic laws.

The court also allowed RaceTrac to elicit testimony from Meghan Robbins, a friend of both Steed and Telenko, that Steed was part of a group that took LSD, drank beer, and smoked marijuana; that Steed and his friends sometimes drank at the Steeds’ house; that Steed engaged in risky behavior; that he once destroyed a pay phone; and that Steed was involved in a fight during a school spring break.

The general character of parties and especially their conduct in other transactions are irrelevant matters. OCGA § 24-2-2. A party’s conduct on the occasion at issue in the case may be proved only by the facts of that event and not by evidence of the party’s prior acts or general character for carelessness or recklessness. Feinberg v. Durga, 189 Ga. App. 733, 735 (3) (377 SE2d 33) (1988). Such evidence is not probative of the issue at hand and may prejudice the jury against that party as to the question of liability in the particular case. Whorton v. Boatwright, 233 Ga. App. 369, 370 (504 SE2d 216) (1998); Whidby v. Columbine Carrier, 182 Ga. App. 638, 639 (1) (356 SE2d 709) (1987), overruled on other grounds, Pender v. Witcher, 194 Ga. App. 72 (389 SE2d 560) (1989). One party is not permitted to influence the jury to find against the other party on account of some act which he may have committed on another occasion, in a different situation and with other parties. Leo v. Williams, 207 Ga. App. 321, 322 (428 SE2d 108) (1993).

In the instant case, the evidence of Steed’s alleged prior drug and alcohol use, alleged reckless driving on other occasions and alleged violent acts on other occasions are irrelevant to the question of liability for the accident in this case. There is a substantial likelihood that this improper evidence may have prejudiced the jury against Steed, his estate and his parents. The court’s admission of the evidence was thus harmful error.

We disagree with RaceTrac’s argument, and the trial court’s ruling, that the evidence of Steed’s alleged drug and alcohol use on other occasions is relevant to the issue of damages because such use will affect his life expectancy. In some cases a person’s long-term drug or alcohol abuse may affect his or her life expectancy. But the anecdotal evidence relied on by RaceTrac was inadequate to prove the effect of drugs or alcohol on the 18-year-old Steed’s potential earning capacity and life expectancy. RaceTrac did not document with any degree of reliability the exact type, frequency and duration of the alleged drug and alcohol use. Additionally, the record before us contains no expert testimony about the effect of drugs and alcohol on Steed’s potential life expectancy and earning capacity. Instead, RaceTrac was allowed to rely on anecdotal evidence of instances of drug and alcohol use by Steed.

The evidence, while perhaps showing that Steed had engaged in such conduct, does not provide any indication as to whether the conduct was fixed and uniform so as to be habitual. And unlike habitual conduct, evidence of a party’s character for performing certain acts is not admissible. Battle v. Kovalski, 202 Ga. App. 471, 472-473 (2) (414 SE2d 700) (1992). RaceTrac’s character evidence, without more, is not probative of life expectancy or earning capacity, and any reasoning that the anecdotes tend to show a shorter life expectancy or lower earning capacity is completely speculative.

“Moreover, even if the evidence was relevant to the issue of damages, the proper procedure to avoid prejudice to the plaintiff on the issue of liability is a separate trial on the issue of damages after liability has been decided. [Cit.]” Leo, supra at 323. Here, the trial court refused the motion of Taylor and the Steeds to bifurcate the trial into liability and damages phases. Instead, the court allowed RaceTrac to introduce the improper evidence of Steed’s character and prior conduct throughout the trial as the jury heard evidence on both liability and damages. The better practice would have been to bifurcate the trial. See generally Whitley v. Gwinnett County, 221 Ga. App. 18, 19-20 (2) (470 SE2d 724) (1996).

Instead, the only step the court took to limit the prejudicial impact of the evidence was in the final jury charge when the court stated that the evidence concerning drug and alcohol use and the propensity to drive fast on other occasions was to be considered in determining the value of Steed’s life and not in deciding liability. This single charge was insufficient to undo the harm of the improper evidence. As discussed above, the evidence of drug and alcohol use, not to mention the evidence of Steed’s purported tendency to drive fast on other occasions, was irrelevant to the issue of damages. Moreover, even if the evidence had been relevant to that issue, it is unlikely the court’s charge actually limited the jury’s consideration of the evidence to damages. Rather, there is a substantial likelihood that the jury considered the evidence in determining liability.

Under these circumstances, the erroneous admission of the irrelevant and prejudicial evidence of Steed’s character and conduct on other occasions mandates that there be a new trial without the improper evidence. The judgment of the lower court is therefore reversed. See Leo, supra; Garner v. Victory Express, 214 Ga. App. 652, 653 (448 SE2d 719) (1994).

2. Taylor and the Steeds contend that the court erred by excluding Telenko’s statement to an emergency room nurse that he consumed six beers during the evening before the accident. Taylor and the Steeds are correct in noting that the statement, though hearsay, is admissible under the hearsay exception allowing a patient’s statements made for purposes of medical diagnosis or treatment. See OCGA § 24-3-4. Moreover, the statement is relevant because it contradicts Telenko’s trial testimony that he drank only two or three beers. See OCGA § 24-9-83.

However, contrary to Taylor and the Steeds’ claim of error, the trial court did not exclude proper evidence'of the statement. The trial court expressly told Taylor and the Steeds that if they called the nurse to whom the statement was made she could testify about it. What the court did not allow was the deposition testimony of a doctor reading the nurse’s written notes that Telenko had made such a statement. The court correctly refused to allow this triple hearsay regarding the alleged statement. See Highsmith v. Fillingim, 171 Ga. App. 548, 549 (320 SE2d 391) (1984).

3. Taylor and the Steeds contend the trial court erroneously charged the jury on assumption of risk, which is a valid defense only in a negligence action, and not in an intentional tort case such as this one. See McEachern v. Muldovan, 234 Ga. App. 152, 156-157 (2) (b) (505 SE2d 495) (1998). They argue that the instant case involves an intentional tort because OCGA § 51-1-40 (b) requires them to prove that RaceTrac wilfully and knowingly sold beer to the underage Telenko.

While it is true that under OCGA § 51-1-40 Taylor and the Steeds must show RaceTrac’s wilful and knowing sale of beer to Telenko, they must also show that Telenko was intoxicated from that beer and that he acted negligently. A person’s potential liability for the negligent acts of a third party to whom they sell alcohol is set forth in OCGA § 51-1-40. See Griffin Motel Co. v. Strickland, 223 Ga. App. 812, 813-814 (479 SE2d 401) (1996); Perryman v. Lufran, Inc., 209 Ga. App. 654, 655 (434 SE2d 112) (1993), disapproved on other grounds, Riley v. H & H Operations, 263 Ga. 652, 655 (436 SE2d 659) (1993). It is the negligence of the third party Telenko, not RaceTrac’s alleged wilful and knowing sale of beer, to which the assumption of risk doctrine applies.

RaceTrac properly asserted as a defense that if Steed was not driving, he assumed the risk of riding in a car with the obviously intoxicated Telenko. See Brown v. Mobley, 227 Ga. App. 140, 143 (488 SE2d 710) (1997) (Smith, J., concurring specially). Because there is some evidence in the record to support such a defense, the court’s jury charge on assumption of the risk was appropriate. See generally Deere & Co. v. Brooks, 250 Ga. 517, 519 (3) (299 SE2d 704) (1983).

Judgment reversed.

McMurray, P. J., concurs. Andrews, J., concurs specially.